Johnson, J., filed a concurring opinion.

Appellant asserts that the statutory instruction at issue should not be applied to him because he is not eligible to have good-conduct time count toward his parole eligibility date.

The first two paragraphs of art. 37.07, § 4(a) discuss good-conduct time and parole as means of reducing the period of incarceration and are couched in terms of “possible ,” “may,” and “might.” The third paragraph discusses the application of parole eligibility to this appellant and is expressed in terms of certainty: “he will not become eligible,” and “he must serve.” It also unequivocally sets out that the minimum time of actual incarceration is without consideration of any good-conduct time appellant accrues and points out that being eligible for parole does not guarantee release. The final two paragraphs are directed at the deliberations on sentencing and caution the jurors that release on parole and denial of release are neither predictable nor under their control or influence.

The existence of parole is common knowledge. It is human nature to wonder how parole impacts the length of incarceration. It may be argued that the instruction is contradictory in that it tells the jurors that they may consider the existence of parole, but that they may not consider how parole law will affect a given defendant, or that the instruction is akin to showing the jurors a pink elephant, and then saying, “Don’t think about that pink elephant.” In my experience, jurors already know about the elephant; they need information on how the elephant performs in the situation presented to them. The instruction in art 37.07 appears to be an effort to impart to the jury relevant information so that the inevitable wondering is both informed and circumscribed.

When considered as a whole, the instruction in art 37.07, § 4(a) accurately sets out the law applicable to this case and to appellant’s circumstances. Appellant is eligible to accrue good-conduct credit, as set out in the first paragraph; he will, in fact, accrue and lose good-conduct time just like any other prisoner. As set out in the second paragraph, at some point it is possible that appellant may be released on parole. This is true as applied to appellant. The third paragraph makes it clear that release to parole will not occur until the lesser of thirty years or one-half of appellant’s sentence has been served and that good conduct-time will not count until then. This is also a correct statement. The final paragraphs reflect the reality that the time that appellant will actually spend incarcerated is only partly determined by the jury’s decision on sentencing. It is only when the instruction’s parts are examined in isolation that the probability of violation of due process arises. The jury was given the entire instruction in correct form.

I concur in the judgment of the Court.

Johnson, J.

Date Filed: April 10, 2002
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